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Monday, July 27, 2009

The Efficiency of Militia Bill H.R. 11654, of June 28, 1902: The DICK ACT of 1902...Renewed Interest

The Efficiency of Militia Bill H.R. 11654, of June 28, 1902: The DICK ACT of 1902...Renewed Interest

Reliance on or reference to The Efficiency of Militia Bill H.R. 11654, of June 28, 1902, the DICK ACT of 1902, in the cause of Second Amendment support has not been made in many a year. The current social climate and continued research by many subsequent to the Supreme Court ruling in District of Columbia v. Heller . A substantial victory for Second Amendment advocates, the Heller Decision, is not the end-all answer and so the legal searches and arguments go on in a climate of “fear-driven”; they’re out to get our guns.

The Resurgence of interest in this 1902 statute and its possible exploration and application in this matter in future court cases is real, and not without some merit.

Thank to friend Tom Finnell For Today’s Heads Up.

But How Many Americans Are Aware Of The Dick Act? Knowledge Is Power!!!!

The Efficiency of Militia Bill H.R. 11654, of June 28, 1902

DICK ACT of 1902... CAN'T BE REPEALED (GUN CONTROL FORBIDDEN) - Protection Against Tyrannical Government

The Dick Act of 1902 also known as the Efficiency of Militia Bill H.R. 11654, of June 28, 1902 invalidates all so-called gun-control laws. It also divides the militia into three distinct and separate entities.

The three classes H.R. 11654 provides for are the organized militia, henceforth known as the National Guard of the State, Territory and District of Columbia, the unorganized militia and the regular army. The militia encompasses every able-bodied male between the ages of 18 and 45. All members of the unorganized militia have the absolute personal right and 2nd Amendment right to keep and bear arms of any type, and as many as they can afford to buy.

The Dick Act of 1902 cannot be repealed; to do so would violate bills of attainder and ex post facto laws which would be yet another gross violation of the U.S. Constitution and the Bill of Rights. The President of the United States has zero authority without violating the Constitution to call the National Guard to serve outside of their State borders.

The National Guard Militia can only be required by the National Government for limited purposes specified in the Constitution (to uphold the laws of the Union; to suppress insurrection and repel invasion). These are the only purposes for which the General Government can call upon the National Guard.

Attorney General Wickersham advised President Taft, "the Organized Militia (the National Guard) can not be employed for offensive warfare outside the limits of the United States."

The Honorable William Gordon, in a speech to the House on Thursday, October 4, 1917, proved that the action of President Wilson in ordering the Organized Militia (the National Guard) to fight a war in Europe was so blatantly unconstitutional that he felt Wilson ought to have been impeached.

During the war with England an attempt was made by Congress to pass a bill authorizing the president to draft 100,000 men between the ages of 18 and 45 to invade enemy territory, Canada. The bill was defeated in the House by Daniel Webster on the precise point that Congress had no such power over the militia as to authorize it to empower the President to draft them into the regular army and send them out of the country.

The fact is that the President has no constitutional right, under any circumstances, to draft men from the militia to fight outside the borders of the USA, and not even beyond the borders of their respective states. Today, we have a constitutional LAW which still stands in waiting for the legislators to obey the Constitution which they swore an oath to uphold.

Charles Hughes of the American Bar Association (ABA) made a speech which is contained in the Appendix to Congressional Record, House, September 10, 1917, pages 6836-6840 which states: "The militia, within the meaning of these provisions of the Constitution is distinct from the Army of the United States." In these pages we also find a statement made by Daniel Webster, "that the great principle of the Constitution on that subject is that the militia is the militia of the States and of the General Government; and thus being the militia of the States, there is no part of the Constitution worded with greater care and with more scrupulous jealousy than that which grants and limits the power of Congress over it."

"This limitation upon the power to raise and support armies clearly establishes the intent and purpose of the framers of the Constitution to limit the power to raise and maintain a standing army to voluntary enlistment, because if the unlimited power to draft and conscript was intended to be conferred, it would have been a useless and puerile thing to limit the use of money for that purpose. Conscripted armies can be paid, but they are not required to be, and if it had been intended to confer the extraordinary power to draft the bodies of citizens and send them out of the country in direct conflict with the limitation upon the use of the militia imposed by the same section and article, certainly some restriction or limitation would have been imposed to restrain the unlimited use of such power."

The opinion can be downloaded here. Relevant quotes from the majority opinion can be found here, and a replay of our LiveBlog can be foundhere. Tom’s commentary is here.

Answering a 217-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one’s home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession. Although times have changed since 1791, Justice Antonin Scalia said for the majority, “it is not the role of this Court to pronounce the Second Amendment extinct.”

Examining the words of the Amendment, the Court concluded “we find they guarantee the individual right to possess and carry weaons in case of confrontation” — in other words, for self-defense. “The inherent right of self-defense has been central to the Second Amendment right,” it added.

The individual right interpretation, the Court said, “is strongly confirmed by the historical background of the Second Amendment,” going back to 17th Century England, as well as by gun rights laws in the states before and immediately after the Amendment was put into the U.S. Constitution.

What Congress did in drafting the Amendment, the Court said, was “to codify a pre-existing right, rather than to fashion a new one.”

Justice Scalia’s opinion stressed that the Court was not casting doubt on long-standing bans on carrying a concealed gun or on gun possession by felons or the mentally retarded, on laws barring guns from schools or government buildings, and laws putting conditions on gun sales.

The Court took no position on whether the Second Amendment right restricts only federal government powers, or also curbs the power of states to regulate guns. In a footnote, Scalia said that the issue of “incorporating” the Second into the Fourteenth Amendment, thus applying it to the states, was “a question not presented by this case.” But the footnote said decisions in 1886 and 1894 had reaffirmed that the Amendment “applies only to the Federal Government.” Whether the Court will reopen that issue thus will depend upon future cases.

The Court in essence demolished the most recent precedent on the Second Amendment — the ruling in U.S. v. Miller in 1939, relied upon heavily by advocates of gun control (and by the dissenting Justices on Thursday). The opinion tartly remarked: “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed. It said that issuing a license to a handgun owner, so the weapon can be used at home, would be a sufficient remedy for the Second Amendment violation of denying any access to a handgun.

While the declaration of the individual right was clear-cut, as was the decision’s nullification of key parts of the Washington, D.C., law, the Court did not lay down a standard for judging the constitutionality of any other federal laws — an omission that the dissenters attacked strongly. Even so, the opinion made it clear that, whatever ultimate test emerge, it probably would be a tough one to meet, at least when self-defense is at issue. As Justice Scalia put it, whatever remains for “future evaluation” about the strength of the right, “it surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”

Justice Scalia’s recitation from the bench of the majority’s reasoning continued for 16 minutes. Justice John Paul Stevens followed, for seven minutes, summarizing the reasons for two dissenting opinions — his and one written by Justice Stephen G. Breyer.

The decision was the final one of the Term and, after issuing it, the Court recessed for the summer, to return on Monday, Oct. 6. Chief Justice John G. Roberts, Jr., said that concluding orders on pending cases will be released by the Court Clerk at 10 a.m. Friday.

So Let’s have a review of some of the things on people’s minds today.

I'll get to a numerical answer, but first consider the question.

"How many gun laws are there?" is subtly biased questions, of the type, “are you still beating your wife?"

It implies that there is a "correct" or "best" number of gun laws, and asks, also implicitly, are there enough gun laws. This leads to a no-win debate on whether there are enough or not.

1. Everything criminal about guns is already illegal.

2. There are more laws than a person can reasonably be expected to remember, and they are growing annually.

3. There are countless legal traps for the unwary. Even for the wary.

Because criminal activity is already outlawed, new laws tend to affect only honest individuals and not criminals, and so of course decent people object to them.The idea of "gun control law" has come to mean "infringement law," a rule that incrementally disarms a civilian, and has little or no bearing on crime control, which is supposed to be the goal.

Infringement laws are illegal, and it's right for people to object to them -- and to the people who promote them. If the goal of the laws is to outlaw crime, then there are enough, because all these luridly promoted acts of infamy involve many laws being violently broken (look at the long list we published for Columbine, at gunlaws.com). Ask if there is sufficient "crime" control, and everyone seems to agree there is not.

So, how many already?

Counted how? The Brady law for example, is one law passed by Congress, but more than 3,000 words long. Some laws are only a few words; the 1999 budget bill -- one law passed by Congress -- was 400,000 words, and included entire new bodies of law. Brady ended up as several different numbered statutes on the books, and amendments to others. How many laws is that?

It originally required a waiting period, now it's a national background check, and it even regulates airline baggage. Would you call that three "laws"? Are each of the many separate requirements it places on the Attorney General separate "laws"? Attempts to count the various things controlled by "one" law are fruitless -- the law is designed to expand and encompass any case brought before it.

You still want some numbers? OK, let's do some counting.

The book that describes the Texas gun laws is nearly 300 pages long. The unabridged federal guide is almost 400.

Most (though not all) of the language in an enacted "law" ends up as numbered and named "sections" or "articles" in law books. By Bloomfield Press' count, Texas had 226 of these numbered gun laws in 2005. Federally, there were 231 numbered statutes in February, 1996, and by 2005 that had grown to 271. Did 40 more federal gun laws in ten years finally outlaw crime? It's almost too silly to ask.

We went from 65,999 words in 1986 to 93,354 words in 2005 on the federal books (we identify and publish all those gun laws so we can word-count them; I don't believe anyone else can do that without a ton of work). Some laws got smaller in word count, but much greater in effect. See for example 18 USC §1114: instead of a long list of federal agents who get special treatment, it now basically says any government employee -- less words, far more impact on society.

Which brings us to the most metrical way of figuring how many laws there are. Texans in 2005 were under at least 49,442 words of state gun law, and 93,354 words of federal gun law -- a total of more than 143,000 words of law. An average novel is around 40,000 words.

So now you have a number. In Texas, you have to follow 143,000 words of law to stay legal, and on the flip side, we have this huge body of rules to use against bad people. What does that do for you? How do you interpret it against the obvious bias -- is that enough words? Let's go for 200,000, you think? Maybe 500,000, hey, go for the gold, a million. That ought to be enough to outlaw crime.

With such an overwhelming glut of gun law on the books, maybe we should (perish the thought!), try repealing some and concentrating on those that are more effective? Or even look at the endemic roots of the problem -- why do people in modern society become vicious predatory animals, and how should we handle them and protect ourselves?

The how-many-gun-laws question is specious and deceitful. But it is clever and appealing.

Guess what. Crime is already against the law.

Examine every new law proposed and ask:

1 - Does it address a crime with a victim that is not already covered by law (exceedingly rare),

2 - On a personal level -- will it affect you in some way, or make your actions criminal if you do not follow it (frighteningly common), and

3 - Is it a smart way to expend limited police and court resources, or would those precious tax dollars be best used elsewhere.

Don't forget, criminals and an armed public are not the same thing. Law should treat them differently.

Bloomfield Press has published comprehensive state-by-state gun-law guides for five states, with every statute reproduced (in pertinent part) in an Appendix. In addition, we produce an unabridged federal gun-law guide. Counts from the most recent editions available show:

Federal gun law in 2005:93,354 words in 271 numbered statutes

Arizona gun law in 2006:36,645 words in 183 numbered statutes

Virginia gun law in 2006:45,494 words in 191 numbered statutes

Texas gun law in 2005:49,442 words in 226 numbered statutes

California gun law in 1998:158,643 words in 541 numbered statutes

Florida gun law in 1998:46,585 words in 229 numbered statutes

FYI, the Supreme Court had heard 92 gun-related cases through 2002 (totalling 337,141 words in the book Supreme Court Gun Cases), and three more cases through 2005, making Heller, in 2008, the 96th gun-related case.

On top of 36 High Court cases that actually mention or quote the Second Amendment, you will find that guns are a bigger subject than just the Amendment itself.

I keep discovering cases that addressed firearms from other perspectives -- search and seizure, sentence enhancements, taxes, states' rights, double jeopardy, definitions, statutory interpretation, the war on drugs, due process and more. The cases use some word directly related to "gun" 2,910 times: firearm 1,380 ,arms 621,gun 362,rifle 134pistol 135,armed 125,self defense 123,machinegun 112,ammunition 77,shotgun 61, handgun 53,revolver 47,keep and bear arms 37,Second Amendment 38,bear arms 27Winchester 5. OK, I admit that all the statistical data furnished here is hardly definitive, and it is not a matter of conjecture to surmise that if I had the time at the moment to update these files in my notes folder…all the numbers would show an increase.

So now you tell me. How many guns laws are there? When a new gun law is proposed, always remember to ask if the supposed problem is already covered by laws (usually is) and the key question -- is there a victim, or does the law just force new rules you must toe, or diminish rights you currently have.

By the way, I've tried to track down the source of the commonly quoted "20,000 gun laws" factoid, without much success. A few small clues here and there (plus the fact that Bloomfield Press is the only outfit in a position to do compiled word counts) have led me to believe the 20,000 number was invented, or at best wildly guessed, probably by the gun-rights community, as a catch-all sound bite for the debate.

It would be better, I think, to recognize that we have all the gun laws we could possibly need to deter and prosecute armed criminals of any description, and end the pointless debate over numbers that don't tell us anything.New laws do little more than infringe on the rights of decent people, and thepeople proposing them should be removed from office for violating their oath to preserve, protect and defend the Constitution.

ADDITIONAL NOTES AND EXHIBITS:

Washington - The Second Amendment Guarantees A Constitutional Right To "Keep And Bear Arms."

What that means exactly has been a source of intense debate that stretches back to America's founding.

Some legal scholars believe the amendment protects a right to keep and bear only those firearms that are necessary for ongoing service in a state militia. Other equally distinguished scholars hold the view that the amendment guarantees individual Americans the right to possess and use firearms, even when the guns are not related to service in a militia.

The US Supreme Court is set to hear oral arguments Tuesday in a potential landmark case that could settle the question once and for all.

The high court last addressed the issue almost 70 years ago in a case called US v. Miller. But that decision left the debate unresolved.

The Supreme Court's jurisprudence has been marked by a surprising lack of clear and decisive action on the Second Amendment. As a result, many of the legal briefs in the current case instead of emphasizing prior decisions of the high court offer competing versions of American history, focusing on the debates, writings, and experiences of the nation's founding era.

An unprecedented case

It presents what Georgetown University Law Center Professor Randy Barnett calls a "clean case."

"There is really no precedent standing in the way of the court enforcing the original meaning of this provision," Professor Barnett told reporters recently. "That's what makes this a historic case. That's what makes it a case that none of us … have probably witnessed in our lifetime and may never witness again."

But that's also what makes it unpredictable, according to other analysts.

"We have no track record on any of this," says John Payton, president of the NAACP Legal Defense Fund, who embraces the militia-service view.

The justices must decide what the authors of the Second Amendment meant when they wrote and approved these words: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

In addition to settling a historic debate, how the high court reads those words will hold important implications for the constitutionality of gun control measures across the US. It could also inject the fiery issue of guns into the 2008 campaigns for president and Congress.

The debate over gun rights and gun-control exists at a major fault line in American political culture. One side views guns as a threat to public safety; the other views them as a protection of personal safety and national liberty.

Specifically at issue before the court in District of Columbia v. Heller (07-290) is the constitutionality of a ban on handguns and other gun-control measures enacted 32 years ago in Washington, D.C.

Dick Anthony Heller, a special police officer at the Federal Judicial Center, wanted to keep a handgun in his Washington home for self-defense. But the city government refused to issue him a permit, citing the city's stringent gun laws.Mr. Heller sued in early 2003, charging that the handgun ban and other measures violated his Second Amendment right.

A federal judge threw the case out in March 2004, ruling that since Heller was not a member of a militia he had no constitutional right to firearms. But that judgment was reversed 2 to 1 last year by a panel of the US Court of Appeals for the D.C. Circuit. The appeals court found that the right to arms established in the Second Amendment is broader than a narrow link to a militia.

In appealing to the Supreme Court, lawyers for the city argue that the Second Amendment protects only militia-related firearms rights, not the personal use and possession of firearms. The city's lawyers say the first clause of the amendment limits the scope of the entire amendment.

Lawyers for Heller disagree. They characterize the amendment's first clause as a preamble to the rights-securing language in the second clause. "The preamble cannot contradict or render meaningless the operative text," writes Heller's lawyer, Alan Gura, in his brief to the court.

In the Constitution, when the framers refer to "the people," they are discussing individual rights, Mr. Gura says. By conferring a right to "keep" arms, the people thereby enjoy a right to have arms in their homes and use them for personal protection, he says.

Lawyers for the District of Columbia say the Second Amendment was not written to create an armed populace. It was designed to address concerns about national power to arm – or disarm – the state militias. "The amendment prevents Congress from interfering with the right of the people of each state to arm a well-regulated militia composed not of professional soldiers, but of the people themselves," writes Todd Kim, solicitor general of the District of Columbia, in his brief to the court.Other gun laws may be affected

District of Columbia v. Heller requires the high court to confront a series of questions. First, what kind of right does the Second Amendment secure, a collective, militia-related right or an individual right?

Second, if it secures an individual right, is that right violated by a handgun ban and other strict gun-control measures such as those enacted in Washington?

To answer the latter question the high court would have to decide what level of constitutional scrutiny to apply to the city's gun-control laws. Will they use the strict scrutiny applied to protect the free speech rights of the First Amendment and other fundamental rights? Or will they use the lower level of scrutiny generally applied against government regulations?

This is the aspect of the case that could jeopardize gun-control measures in other parts of the country.

Some analysts say that even if a majority of justices rule that the Second Amendment protects an individual right to arms, their ruling will not necessarily undercut most existing gun-control laws.

A similar handgun ban in Chicago would probably be unconstitutional, they say, but widely adopted gun-control measures like background checks and machine gun restrictions would most likely survive.

"The issues in this case are not about eliminating all reasonable restrictions on firearms," says Texas Solicitor General Ted Cruz, who authored a friend of the court brief on behalf of Texas and 30 other states urging the high court to strike down the handgun ban.

"Instead, they are about does the Second Amendment protect a real right," he says. A decision in the case is expected by late June.

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